3. TOBACCO INDUSTRY INTERFERENCE IN ASEAN

The tobacco industry has never been short of innovative ideas to promote its deadly products, and over the years, despite the industry’s intentions having been exposed, it continues to undermine tobacco control activities and fight tobacco industry regulation. To protect its commercial interest, tobacco companies use sophisticated tactics to challenge, discredit, weaken, obstruct, and delay implementation of effective tobacco control measures, including lobbying governments, politicians, and the media.

Parties to the FCTC recognise “the need to be alert to any efforts by the tobacco industry to undermine or subvert tobacco control efforts and the need to be informed of activities of the tobacco industry that have a negative impact on tobacco control efforts” (Preamble), and agree that in setting and implementing their public health policies with regard to tobacco control they shall “act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law” (Article 5.3).

Allowing tobacco corporations to influence tobacco control policy violates both the spirit and letter of the FCTC. World Health Assembly resolution 54.18 and FCTC Articles 12(e) and 20.4(c) further provide governments with the support of the international community to stand up to interference from the tobacco industry.

How Does the Tobacco Industry Influence Tobacco Control Policies and Derail Effective Regulation?
1. Interference: Undermining FCTC Ratification and Implementation The FCTC seeks to regulate the industry or at least keep its activities in check with tight controls on tobacco products. The industry fights back in countries where it can still exert its influence. Such interference can be done indirectly with the help of pro-tobacco industry government officials. In Indonesia, a letter dated 2 January 2004 was sent by the Head of District Parliament of Temanggung to then President Megawati Sukarnoputri on behalf of the Chairman of District Parliament and Indonesian Farmers Associations to appeal to the President not to sign the FCTC.

Following in 2005, the Vice-Chairman of Indonesian Forum of Parliamentarians on Population and Development (IFPPD) in his capacity as Chairman of the Tobacco Farmer Association in a seminar on Employment Opportunity vs Health said,“Indonesia should not ratify FCTC at the moment.”

Till today, due to the strong lobby from the tobacco industry, Indonesia remains the only non-party to the FCTC in the ASEAN region.

2. Industry Is the Problem, Not A Stakeholder In Public Health
The industry has often requested to be part of national and sub-national tobacco control task forces or committees by promoting itself as a stakeholder. However, by analogy, a government would normally not include private companies in regulatory bodies that decide on their very trade.

In Cambodia, in 2007, BAT Cambodia representatives urged the government to consult it on the formulation of any law pertaining to tobacco control during a meeting with the Commission on Public Health and the National Assembly.

Since 2003, as set forth in Section 29 of Republic Act 9211 (Tobacco Regulation Act of 2003), the Philippine Tobacco Institute (PTI) and the National Tobacco Administration (NTA) have been sitting as members of the Inter-Agency Committee on Tobacco (IACT), which is tasked with the law’s implementation. This enables PTI to interfere in decision-making despite their obvious conflict of interest. This inclusion of a tobacco industry representative in the IACT has been questioned repeatedly by tobacco control advocates. In 2008, there were also reports that Philip Morris Philippines Manufacturing Inc. (PMPMI) requested to be involved in the meetings of the Legazpi City Anti-Smoking Committee.

In 2000, tobacco companies entered into a 25-year Government and Tobacco Industry Contract with the Laotian government that restricts tobacco tax to 15%, although the law stipulates a tax rate of 55%.

3. Diluting Government’s Efforts
To weaken strong tobacco control laws, the industry is known to draft and distribute tobacco-friendly sample legislation to the government as a ready-to-adopt alternative. BAT Cambodia gave its own draft law on tobacco control to the Council of Ministers in 2007 to thwart any possibility of the government’s introduction of tobacco regulation that would be unfavorable to the industry.

In other instances, the industry is known to have submitted position papers, letters, and comments to policymakers that directly oppose proposed measures or offer diluted tobacco-friendly alternatives. In Malaysia, when Ministry of Health officials were preparing for the introduction of graphic warnings on cigarette packs in compliance with Article 11 of the FCTC, PMI, BAT, and JTI submitted their proposals on what the health warnings should be. In Malaysia, the Confederation of Malaysian Tobacco Manufacturers (CMTM) wrote to the Health Ministry in an attempt to defer the ban on kiddie pack in 2005 and graphic health warning on cigarette packs. The industry was successful, and the Health Ministry explained that the postponement of the ban by another five years was to coincide with the advent of the ASEAN Free Trade Agreement (AFTA) in the country, and also to allow tobacco farmers a grace period to switch to alternative crops (which started more than 15 years earlier) under the National Agricultural Policy. PMI interfered in government administration in Thailand when it organized the Fiscal Policy Office Forum in 2006.

Another way to delay the implementation of a policy is by using trade or economic issues as reasons. In Malaysia and Indonesia, for example, the industry was known to delay health-related policies by raising these issues, and surprisingly, the governments of the said countries allowed trade and economic issues to supersede the importance of health concerns. In Malaysia, the ban of kiddie packs was deferred with the explanation that the ban would affect the livelihood of tobacco farmers. The industry would also try to defend its rights to use the terms “light” and “mild”, saying that these are not descriptors of the products.

In the Philippines, the tobacco industry’s “doomsday” tactics to oppose the introduction of graphic health warning (GHW) measures included an unfounded prediction of potential economic collapse and devastation of tobacco farmers. Besides maintaining close contact with policymakers to soften their anti-tobacco stance, the industry also involves third parties to exert pressure and champion its cause. It is to reinforce an impression on lawmakers that indeed farmers, retailers, restaurateurs, and others named by the industry are going to be badly affected.

In Cambodia, tobacco farmers were used by BAT to praise the company in 2008 on a television documentary of how tobacco cultivation improved their standard of living. Restaurateurs, through their association in Malaysia, were used to convince the government that if smoking was banned in restaurants, they would experience a drastic drop in business. Congressmen of the major tobacco-producing provinces used tobacco farming concerns to oppose the graphic health warning and sin tax bills during legislative committee hearings and meetings in the Philippines. The industry has also been very active in Vietnam lobbying policymakers in different ways to delay and weaken tobacco control regulations.

4. Mission Misinformation: How It Is Done
The industry is known to misinform the public and the government with half-truths and lies over the years. One of the better known deceptions is the use of descriptors such as “light” and “mild” which have been known to mislead smokers into thinking that such light, mild, and low-tar cigarettes are less harmful to health than regular cigarettes. Scientific evidence has proven that there is no health benefit to smoking light, mild, and low-tar cigarettes, and that smoking such cigarettes carries the same risk of lung cancer, heart attacks, and other tobacco-caused diseases as regular cigarettes.

In Malaysia, it has been observed that in the months leading up to the annual National Budget announcement, the tobacco industry would increase press coverage on tobacco smuggling activities in the country and conduct a “tour” for journalists to showcase its activities for tobacco farmers. This appears to be an attempt to dissuade the government from increasing tobacco tax.

In 2006, in the Philippines, despite not meeting the compliance deadline set by law, PMPMI issued a sworn statement that it had not committed any violation of RA 9211’s health warning provision when in fact, the legal mandate and deadline for compliance is clear under the law. In supporting its argument, PMPMI used a personal (neither legal nor official) opinion given by the Secretary of Health in an ambush phone patch interview as evidence in its favor.

The following year, after a lower court ruled in its favor, Fortune Tobacco issued numerous misleading press statements regarding the interpretation of RA 9211’s outdoor advertising ban provisions, based on a decision that is not final. PTI also issued statements that it is complying with the law. Then in 2008, PMPMI sent official statements to the media announcing that it is complying with the law with regard to its sponsorship of the Eraserheads concert, and that the sponsorship does not involve a violation of the mass media advertising ban. PMPMI later withdrew sponsorship after the Department of Health threatened legal prosecution.

In 2008, in relation to a proposed health warning bill in Congress that would ban misleading descriptors, such as “light” and “mild” as required under Article 11 of the FCTC, JTI placed newspaper advertisements telling the public that “mild” and “low tar” are not necessarily safer than regular cigarettes.

5. Threat: See You In Court
While ASEAN governments may hesitate to file suits against the tobacco industry, the latter commonly uses threats of court action to protect its profits. However, such threats are seldom executed because a good relationship with the government is important.

For Thailand, a leader in tobacco control in the ASEAN region, effective legislation did not come easy. When the Thai government planned to introduce graphic warnings on cigarette packs in 2002, PM reacted by threatening to sue the Public Health Ministry. PM claimed that 1) the Public Health Ministry would be infringing on its freedom of speech and communication; and, 2) its trademark rights, protected under the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), would be violated. It sent letters to high-ranking government officials including the Public Health Minister in February 2002. The Thai health officials remained firm, and the Public Health Minister endorsed the new regulations prioritizing public health concern over business interests.

All companies supplying cigarettes to Thailand were given 12 months to comply. Then in 2005, PM (Thailand), British American Tobacco (Thailand), JTI, and the state-owned Thailand Tobacco Monopoly threatened to sue the Thai Health Ministry for banning cigarette displays at points of sale. They argued that the ban beginning 24 September 2005 would deprive them of their right to display their products. They also argued that concealing the packs would make it difficult for the industry to check the authenticity of its products and for the tax authorities to verify tax collection.
The industry proposed to limit display space to one pack per brand and enforce existing rules that include tough penalties for retailers who sell cigarettes to minors. The industry’s proposals were rejected and the ban was implemented.

When CP Seven-Eleven convenience store chain did not comply, Thailand’s leading lawyers prepared to file a lawsuit against it. Seven-Eleven backed down. This incident also documented how the industry instigated retailers, such as Seven-Eleven, to flout the law.

To date, the industry in the Philippines is perhaps the boldest in the Southeast Asian region to actually take the government to court. In 2007, for example, PTI challenged the IACT in court regarding the definition in RA 9211 of outdoor advertising at points of sale. (By 2010, over 12 cases had been initiated by the tobacco companies to challenge policies relating to health warning, smoke-free enforcement, promotions, advertisement, and tobacco regulation.)

6. Stretching the Timeline: Implementation Can Wait
Employing delay tactics is one of the most common methods used by the industry because they are more likely to be accepted by a government. In order to do so, the industry has to generate justifications, even if these are half truths or outright lies. There are, however, problems in obtaining evidence for these activities because these are done by lobbying policymakers and sometimes through pressure groups such as retailer associations.

In Indonesia, industry interference with policy formulation and implementation is known to have been conducted over the years. Thus, it is suspected that the industry has been indirectly involved with the unreasonable objection to the inclusion of the tobacco control draft bill in the Parliament’s legislative agenda for the past three years despite the support of a significant number of parliamentarians.
Similar strategies have also been used in Malaysia when a sports sponsorship ban supposed to be implemented in December 2005 (under the Control of Tobacco Product Regulations [CTPR] 2004), was suddenly deferred to December 2006 without any public announcement or amendment to the legislation. Also, in spite of its earlier public announcement to implement a ban on the sale of kiddie packs (less than 20 sticks) in 2005, the Malaysian Health Ministry deferred it until 2010.

The industry utilized the media and its allied group – tobacco farmers – to reinforce its arguments against the ban with claims that it threatens the livelihood of tobacco farmers. In 2006, the Philippine Tobacco Institute and its members including PMPMI, BAT, and JTI requested a 4-month postponement/delay of implementation of the RA 9211 deadline that required the industry to print 30% text warnings on the front of tobacco packages despite knowing about the deadline 3 years before. (In 2015, the tobacco companies questioned the graphic warning templates issued by the health ministry, causing a 4-month delay in implementation of the law.)

Although anti-tobacco legislation in Thailand is tough, TTM and PM audaciously delayed picture pack warnings and ban on display of cigarette packs at points of sale.

7. Lack of Transparency: Closed-Door Deals
Countries in the ASEAN region do not have a system of disclosure or a transparent system of recording minutes of any meetings the tobacco industry has with government officials or politicians.
Coupled with lack of public access to information, this creates opportunities for corruption, which by the same token, is hard to provide documentary evidence for.

8. Industry Appointment: Having Influential Personalities on Its Board
The industry engages personalities of influence into its companies as directors or similar decision-makers so that it can persuade government policymakers through its established networks and influence.

In 2001, Kenneth Clarke, former chancellor and secretary of state for health in the UK, went to Vietnam on behalf of BAT to seek approval to expand production in the country, whereas in Laos, a former policymaker was engaged by the industry as a legal consultant recently to lobby policymakers on tobacco control regulations. Sok Siphanna, who was the former Secretary of State of the Ministry of Commerce of Cambodia, spoke favorably of BAT tobacco farming at Kompong Cham province. In Indonesia, the ex-Coordinating Minister of Economics and Industry was made a Sampoerna Foundation board member in 2005. Tan Sri Abu Talib bin Othman became the chairman of British American Tobacco Malaysia Berhad in 1994, a year after his services as Malaysia’s attorney general (1980-1993). Ironically, despite his position in BATM, he is a director of Gleneagles Hospital (KL) Sdn Bhd, Oncology Centre (KL) Sdn Bhd, and chairman of the Human Rights Commission of Malaysia. In the Philippines, former Congressman Salacnib Baterina has been a counsel for PTI since 2007. Another prominent figure, Antonio Abaya, a retired army general, has been the president of Fortune Tobacco for more than 20 years.

Thailand is not spared from this strategy either because it is known that the Thai Tobacco Monopoly Board consists of former high-ranking government officials including those from the military.

9. Violation: Caveat Emptor (Let the Buyer Beware)
On BAT Malaysia’s website, it states that the company’s business is “not about persuading people to smoke” and that smoking “should only be for adults who are aware of the risks.” This is BAT’s attempt to exonerate itself from liability should smokers try to sue the company because it can claim smokers got into the habit by their own choice after they have been warned of the health consequences. However, this caveat emptor principle is outdated and does not apply here.

In reality, the industry does promote to youth and non-smokers. It is known to blatantly violate laws or to circumvent them, such as by offering free cigarettes. Distribution of free cigarettes is carried out in Indonesia, even at events largely patronized by youth. In Vietnam, despite a ban on person-to-person promotions, female sales promoters are seen going from table to table offering cigarettes in cafes, pubs, and food outlets. There were reports that cigarette promoters have been visiting night entertainment outlets ad hoc in Malaysia to promote their products.

10. Corporate Social Responsibility: The Way to Buy Goodwill
Tobacco companies sponsor community activities and projects that are associated with the poor. However, no amount of community work can exonerate an industry that produces a product that is addictive, causes diseases, and brings early death.

Annually, the Thailand Tobacco Monopoly produces a list of corporate social responsibility (CSR) activities, which can be done through government departments/agencies or via government’s non-tobacco-related health initiatives (e.g., nutrition, malaria, disaster relief, etc.).

CSR is very much alive in Cambodia and Vietnam in the form of subsidy to farmers, houses for the poor, and disaster relief aid. In 2007, BAT Cambodia organized a study tour for members of parliament to Kompong Cham. Similar type of industry-sponsored study tour for government officers is also an ongoing event in Vietnam.

PM in Thailand has been funding and holding drug prevention programmes. It also has offered scholarships, educational, art or sport programmes, environmental initiatives, and research programmes. BAT (Malaysia) offers scholarships to selected students and conducted reforestation programmes just as in CambodiWhat the industry refrained from highlighting is the fact that despite the reforestation programme, it is an industry that uses much natural resource – wood – to cure tobacco leaves, produce paper for various parts of the cigarettes, its packs, and even the filter which actually is cellulose acetate.
Between 1994 and 2007, PMPMI held its PM Philippines Arts Awards, and in 2007 and 2008, it introduced the Bright Leaf Agriculture Journalism Awards. Recent contribution to schools manifested in the form of donation of three Toyota Corollas by PMPMI to support the Department of Education’s Adopt-a-School Programme 2008 through PMPMI’s affiliate, Philippine Band of Mercy (PBM). Fortune Tobacco Corp. also donated to the Adopt-a-School programme.

Many press releases were issued by PMPMI when it opened a regional warehouse in Subic Bay Freeport Zone. They reported that the regional warehouse will boost the Philippine economy, but failed to mention the addiction and deaths its products cause. To facilitate its public relations effort, reporters were invited to tour the PMPMI factory and subsequently a late evening documentary on a major television network featured the plant tour.

“Educational” tours for journalists to factories or farms are effective in building networks with the press and projecting a good image for both the government and the public. In December 2006, PM Thailand sponsored and organized such a tour for a group of journalists from the Association of Economic Journalism to visit the Royal Flora Festival in Chiang Mai, Thailand, while exposing them to its PM-sponsored youth and environmental programme.

In 2008, the industry in Indonesia presented journalism awards to improve its relationship with the press and ultimately its press coverage. The industry needs the press to keep its good image alive in the public eye.